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Filed under: Gill/Massachusetts

The U.S. Supreme Court declined to review more LGBT rights cases yesterday.

Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.

Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.

First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.

The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.

Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.

Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.

In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.

In the Gill/Massachusetts case, there are several petitions for certiorari to the Supreme Court. The Bipartisan Legal Advisory Group (BLAG) is the main petitioner. They were the losing party at the First Circuit Court of Appeals, after attempting to defend the law for House Republicans. The Justice Department also filed a petition in the case to ensure the Court will be able to hear it, since the DOJ has argued that BLAG lacks Article III standing to appear in federal court. And finally, the state of Massachusetts filed its own conditional cross-petition. In a response brief filed at the same time as their petition, Massachusetts gave its reasoning for its own petition:

Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in order for this Court to reach those issues. See Conditional Cross-Petition for a Writ of Certiorari (filed July 20, 2012.)

BLAG has filed its response to the Massachusetts conditional cross-petition, suggesting that the Supreme Court deny it. BLAG writes that the conditional cross-petition is “not necessary” and that granting it “will simply complicate the briefing and scheduling of this case on the merits without materially assisting the Court[.]” BLAG also calls the Spending Clause and Tenth Amendment claims raised by Massachusetts “weak.”

Their main argument that the petition is superfluous is that:

Whether or not the Court grants Massachusetts’ conditional cross-petition, Massachusetts is a respondent for purposes of the House’s petition in No. 12-13 (and the Department’s petition in No. 12-15).

The House’s petition essentially is asking the Court to review a decision that was in favor of the state, and so the state itself has the ability to respond to arguments challenging the ruling in its favor. Therefore they suggest there is not a need for any other petition than their own. BLAG says that not only could Massachusetts still raise its Spending Clause and Tenth Amendment arguments as a respondent, but the DOJ is also defending DOMA against those particular arguments (since DOJ believes Section 3 of DOMA is unconstitutional under equal protection principles in the Fifth Amendment.) This, they suggest, could complicate the situation if the petition is accepted.

The filing attacks squarely Massachusetts’ arguments:

Massachusetts’ arguments are novel, meritless and antithetical to our basic constitutional design, which grants the federal and state governments separate sovereignty and makes each superior in its own realm except where the Supremacy Clause gives the federal government the upper hand.

Massachusetts, in its petition, said DOMA is a “sweeping federal incursion” into an area that has traditionally been regulated by states. And in the reply brief that was filed at the same time as the initial petition, Massachusetts pointed out that there was never any federal definition of marriage that precluded recognition of interracial marriage or any other type of marriage that a state deemed legal. They wrote:

BLAG responds that:

The notion that the federal government cannot adopt its own definitions for purposes of its own federal programs, but must adopt for federal-law purposes whatever definitions the states favor, would turn the Supremacy Clause on its head.

And it further argues:

The theory Massachusetts proposes is far more radical than anything ever suggested by this Court: That even when Congress has specifically defined family-relationship terms for purposes of federal law, the Tenth Amendment provides that state law will “reverse preempt” the federal definition.

BLAG also argues against Massachusetts Spending Clause argument, suggesting it is “unprecedented” and pointing out that Massachusetts has said that it relies on equal protection: if Section 3 of DOMA is unconstitutional under equal protection principles, then it also violates the Spending Clause because spending conditions can’t violate any other part of the constitution. BLAG says the fact that the arguments somewhat rely on each other only underscores the uselessness of the conditional cross-petition.

Since BLAG requested and was granted a short extension to file responses (August 31) more of their responses to petitions in this and other DOMA cases will be forthcoming soon.

The state of Indiana filed an amicus brief with fourteen other states in the Gill case, challenging Section 3 of the Defense of Marriage Act. The case has reached the Supreme Court through petitions for certiorari by the Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans after the Justice Department decided it would no longer defend Section 3, and through a petition by the Justice Department itself. The state of Massachusetts, whose case is consolidate with Gill at the appellate level, has also filed a petition for certiorari

Indiana, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and Virginia signed onto the brief, which is largely based on the argument that “procreation” is a rational basis for the Act and for state marriage laws as well. Arguing that the Supreme Court has held that “[i]he same equal protection principles have generally applied to state and federal laws,” the attorneys write that “if the federal government has no legitimate reason to define for the purpose of federal programs, considerations of tradition or gradualism are unlikely to save state marriage laws—especially those that differentiate between opposite-sex and same-sex unions in name only.” In their view, a decision nullifying the Congressional definition of marriage would necessarily use logic that would lead to the evisceration of state marriage definitions.

Referring to the First Circuit’s holding that Section 3 of DOMA has no demonstrated link to its purported goals of strengthening heterosexual marriage as a “startling conclusion”, the brief says the First Circuit “answered the wrong questions” to reach its decision, because in the states’ view, “the panel below simply needed to ask why Congress sought to incentivize traditional marriages and whether that rationale extends to same-sex couples.” In their view, the case turns on whether there are important differences between same-sex and opposite-sex couples, and they offer the ability to procreate as one important distinction. To the states, the definition of marriage is “based on an understanding that civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children.” The fifteen states argue that there is no government interest in promoting marriage just for the sake of it, without reference to procreative purposes. And they suggest same-sex couples can’t procreate, therefore it’s reasonable to leave the distinction of being “married” solely to opposite-sex couples.

Marriage creates the social norm “that potentially procreative sexual activity should occur in a long-term, cohabitative relationship.” Quoting Maggie Gallagher, the brief suggests that “society” channels people into opposite-sex marriages for procreation, and that Section 3 of the federal Defense of Marriage furthers that channeling, “Through civil recognition of marriage, society channels sexual desires capable of producing children into stable unions that will raise those children in the circumstances that have proven optimal. Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773, 781-82 (2002). “[M]arriage’s vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.” Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can.J. Fam. L. 11, 47 (2004).”

And same-sex relationships are still recognized by arrangements that are not called marriage, that are just “alternatives” to the “model”: “This ideal does not disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children. But these relationships are exactly that—alternatives to the model.” The states also write that courts have long said that procreation is a rational basis for traditional marriage.

The states argue that Baker v. Nelson controls the outcome of DOMA litigation. In Baker, the Supreme Court dismissed “for want of a substantial federal question” a case involving a gay couple in Minnesota who sought a marriage license but was denied. Since under the (now repealed) law that required mandatory review of the Minnesota Supreme Court’s Baker decision, the Supreme Court’s dismissal is a decision “on the merits” (at least regarding the precise issues at stake in Baker), the states argue that the question of restricting the definition of marriage to opposite-sex couples was already reached and decided on.

The states want the Court to grant the petition and intervene in the dispute because, “The failure of the decision below to [articulate a coherent rationale for government recognition of both same-sex and opposite-sex legal marriages]—and indeed of any of the courts invalidating traditional marriage and its benefits to do so—while abnegating one of the most fundamental and enduring civil institutions in American life, justifies this Court’s intervention.”

Gay and Lesbian Advocates and Defenders (GLAD) who is representing the plaintiffs in Gill v. Office of Personnel Management challenging Section 3 of the Defense of Marriage Act has filed a brief in response to the petitions for certiorari to the Supreme Court filed by the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans, and by the Justice Department, who is fighting DOMA in court. Their brief asks the Supreme Court to hear their challenge.

Since BLAG and the Justice Department have both asked the Court to take up the challenge, the filing of this brief with the Court means all three parties now support Supreme Court review. The brief describes DOMA as “a class-based enactment, […] a federal declaration that the Respondents’ marriages are not “real marriages” and merit no respect under any federal law.”

They argue that there is “no dispute” that the legal issues raised in this case are of national importance, pointing to the fact that BLAG and the Justice Department want Supreme Court review of the case. They write, “The Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition… [A]s multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.”

In its opinion striking down Section 3 of DOMA, the First Circuit used the more lenient rational basis test to analyze the constitutionality of the law. In doing so, they considered cases like Romer v. Evans and Dept of Agriculture v. Moreno in which the Supreme Court struck down laws using rational basis review while paying attention specifically to the fact that the laws were based on “animus” against a specific group (gays and lesbians in Romer, hippies in Moreno.) BLAG contended in its petition for certiorari that this approach is “novel” and “unique” among other things. The Gil plaintiffs respond to this point, writing, “While BLAG objects, Moreno, Cleburne, and Romer do in fact illustrate that where unpopular groups or historically disadvantaged minorities are concerned, the Court has, in fact, been careful to scrutinize claims of “fit” between a policy and its stated objectives (Moreno); found alleged legislative interests unconvincing (Cleburne); and not hesitated to find a lack of a relationship between a status based enactment and legitimate interests (Romer). Regardless of its word choice – e.g., “intensified scrutiny,” “greater rigor,” or “closer examination,” DOJ. App. 11a, 13a, 15a – the First Circuit accurately captured the nuances of rational basis review as requiring an examination of whether a law’s justifications are simply pretexts.”

Regarding the level of scrutiny the Supreme Court should apply to laws impacting gays and lesbians, plaintiffs write, “rational basis analysis the First Circuit actually applied to consider and ultimately reject each of the proffered government interests for DOMA further belies BLAG’s assertion that it invented some “new” form of review.” However, although they accept the rational basis review applied by the First Circuit, plaintiffs ask the Court to apply a heightened form of judicial scrutiny. They suggest, “If the Court grants review, it should also consider whether heightened scrutiny applies to laws that discriminate based on sexual orientation” because “this Court’s silence on the standard of review has allowed many lower courts to continue to apply outdated Circuit precedent that sexual orientation discrimination is subject to only rational basis review, thus leaving gay men and lesbians vulnerable to intentional discrimination.” As the Justice Department has already pointed out, gays and lesbians fit the qualifications to receive heightened scrutiny.

The Court will decide whether it will hear Gill v. OPM in early October.

Yesterday, a new brief and a petition for certiorari to the Supreme Court were filed in Massachusetts v. Department of Health and Human Services, a challenge to Section 3 of the Defense of Marriage Act that is consolidated with Gill v. Office of Personnel Management. The Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans has already filed its petition for certiorari in the case. The Justice Department has filed one as well. Massachusetts had raised some separate issues in the courts below and they are asking the Supreme Court to decide those issues as well; the reply brief raises two new questions:

The Commonwealth agrees with the court of appeals’ judgment that Section 3 of DOMA is unconstitutional and normally would oppose further review in order to ensure that the judgment takes effect as soon as possible. However, the Commonwealth recognizes that the question is one of national importance and that this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or non-enforcement of DOMA throughout the country.

Massachusetts’ attorneys think the Court should review this case possibly along with others because it would present the Court with a “full range” of challenges to the law, including the Spending Clause and Tenth Amendment questions along with the equal protection question and an opportunity to define the level of scrutiny required for analyzing laws that classify gays and lesbians. In fact, Massachusetts addresses the importance of the judicial scrutiny issue, writing:

Under this Court’s jurisprudence, a classification is subject to heightened scrutiny if (1) the targeted class has suffered a history of discrimination, and (2) the characteristics that distinguish the group are unrelated to their ability to contribute to society.
[…]
In determining the applicability of heightened scrutiny, the Court at times has also considered (3) whether members of the class exhibit immutable distinguishing characteristics, and (4) whether the class is a minority or evidences political powerlessness requiring protection from the majoritarian political process. Murgia, 427 U.S. at 313-314. As the uncontroverted record below demonstrated, gays and lesbians meet each of these requirements.
[…]
Review of this question is particularly necessary because the courts of appeals have been reluctant to undertake the multi-factor analysis that Lyng requires. Neither Cook nor most of the other cases cited by BLAG for the proposition that heightened scrutiny should not apply to classifications based on sexual orientation discusses the heightened scrutiny factors in any substantial way.

And they point out that under the First Circuit’s analysis, federalism concerns would all for more rigorous review.

And lastly, the brief suggests that Section 3 of DOMA violates the Spending Clause because the law itself is unrelated to the spending programs. Under their argument, the definition of marriage that Section 3 of DOMA requires would need to be in service of the laws it affects, like Medicaid payments and military burial. In Massachusetts’ view there is no relationship between the definition and the programs whatsoever.

Massachusetts says its lawyers take “no position” on whether the Bipartisan Legal Advisory Group (BLAG) has ‘standing’ to appear in an Article III court and says it has filed its own petition for certiorari:

Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in order for this Court to reach those issues. See Conditional Cross-Petition for a Writ of Certiorari (filed July 20, 2012.)

In addressing the constitutionality of DOMA, this Court should also consider the Commonwealth’s Tenth Amendment and Spending Clause arguments pressed and decided below, which present important questions of federalism that are best addressed in a case where a State appears as a party. As the Commonwealth’s response explains more fully, the Tenth Amendment and Spending Clause provide additional and independent bases for affirming the judgment in the Commonwealth’s favor.

Massachusetts is filing its petition because of the First Circuit’s analysis, which did not expressly rely on the Tenth Amendment and Spending Clause claims, therefore, Massachusetts is concerned the Court might not review those issues without a cross-petition.

While pointing out that it details its arguments more fully in its reply brief, Massachusetts suggests that DOMA is “a sweeping and unprecedented federal incursion into an area that, for centuries, has been a domain of exclusive State regulation” and therefore violates the Tenth Amendment. And because Section 3 bears no relation to the federal programs at issue, it violates the Spending Clause as well.

The Court will decide whether to take this or other DOMA challenges either at its conference on September 24 or in early October.

Yesterday, Scottie analyzed the petition for certiorari filed with the Supreme Court by lawyers for Edie Windsor, a widowed New Yorker forced to pay over $350,000 in estate taxes after the death of her wife. Windsor’s lawyers asked the Court to skip an appellate review by the Second Circuit Court of Appeals of a district court judgment in Windsor’s favor ruling DOMA unconstitutional. The Windsor case is now the third DOMA case to be presented to the court, along with with a case out of California called Golinski, which the Department of Justice has asked the Supreme Court to take up before review at the Ninth Circuit Court of Appeals, and a case out of Massachusetts called Gill, in which the First Circuit Court of Appeals upheld a district court decision invalidating the statute.

Scottie’s post yesterday delved into the technical details of the three cases, especially Windsor, so I thought I’d take a broader look today at what the current landscape for DOMA litigation looks like. In truth, the last month has completely changed the calculus regarding DOMA’s chances at the high court: before the Justice Department’s filing in Golinski, only the Gill case was at the point where Supreme Court review would normally be requested, and while the case certainly presents issues of extreme importance, there was specultaion that the Supreme Court might wait until more circuit courts ruled on the matter. But with the Golinski and Windsor requests now filed, the Supreme Court has before it cases from three different circuits, each applying (or challenging) the distinct legal precedent of those circuits.

This is not to say the Supreme Court will not still wait for the Golinski and Windsor cases to go through the normal appellate process, which might produce what is called a “circuit split,” in which some circuits would strike DOMA down (as the First Circuit has) and others would uphold it. But the concurrent petitions give the Supreme Court less of an incentive to do so, especially given DOMA’s remarkably poor track record so far in the court system: no judge has upheld DOMA as constitutional in recent years, and judges appointed by presidents of both political parties have declared it in violation of the U.S. Constitution. Although each of these opinions has relied on distinct legal reasoning, the judicial consensus right now (as represented perhaps most succinctly by the 3-0 vote of a First Circuit panel with two Republican appointees and one Democratic appointee upholding a lower court ruling invalidating DOMA) is that the law simply doesn’t pass constitutional muster.

Perhaps the aspect of the triple petitions that makes the path forward for DOMA increasingly intriguing is that the three cases offer three unique paths forward on the issue of scrutiny, which of course is a significant one for the future of LGBT rights litigation at large. The three lower court decisions being presented to the Supreme Court each offer their own unique opinion on the proper level of constitutional scrutiny courts should give to laws that discriminate against LGBT people.

In Golinski, Judge Jeffrey White decided that previous Ninth Circuit decisions mandating rational basis scrutiny were based on outdated law, and struck DOMA down under heightened scrutiny. In Windsor, Judge Barbara Jones ruled that rational basis scrutiny sufficed in making a decision on the statute’s constitutionality, and declined to consider the necessity of heightened scrutiny. And finally, the First Circuit, ruling in Gill, modified district court Judge Joseph Tauro’s reliance on rational basis classification and instead laid out an increased level of ‘rational basis plus’ scrutiny based on DOMA’s affect on a historically disadvantaged class and the federalism concerns inherent in its passage.

The Supreme Court will decide the scrutiny issue entirely on its own, and will be under no obligation to follow the guide of the lower courts. But the three different constitutional reasonings in Gill, Golinski and Windsor nonetheless give the Court issues to chew on both in private and at oral argument. Of course, that is assuming that the high court decides to take up the two latter cases before they are considered at the appellate level. As usual, this is all crystal ball-style court-watching.

But I believe Edie Windsor’s case is important because it demonstrates in an incredibly eloquent and clear way how we should be looking at DOMA. The Gill and Golinski cases were relatively complex ones, with arguments made about health insurance, survivorship benefits, joint tax filing, and federal infringements on the rights of the states. The Windsor case is at its heart a much simpler one. Edie Windsor was forced to pay an incredibly large amount of money after the death of her partner, despite the fact that the state they lived in recognized them as a married couple. If she had simply been married to a man, she wouldn’t have had to do so. Notwithstanding the arguments made about the legislative intent of DOMA of the possibility of moral opprobrium as a force behind its passage, can there possibly be a rational governmental objective, in 2012, to punish an American citizen in this way? I can’t think of one, and whether the Supreme Court takes up that question, hopefully sooner rather than later, I am sure that at least five justices won’t be able to think of one either.